Conflict & Compromise

Protecting the First Amendment often conflicts with protecting other values, like the right to a fair trial, fair elections and national security. In chapter 11 of Freedom for the Thought We Hate, author Anthony Lewis discusses the struggle that comes with balancing the First Amendment with other interests.

Protecting the right to a fair trial has often come in conflict with the First Amendment. Newspapers and broadcasters often paint defendants in a certain light, which can lead to a biased jury and unfair trial. In the 1961 case Irvin v. Dowd, the Supreme Court held that the Constitution required reversal of a murder conviction when pretrial news coverage made a fair trial unlikely. In this case, the press named the defendant the “mad dog killer.” When questioned before the trial, the jury said they thought the defendant was guilty based on what they had read, before being presented any evidence in court.

The Court has proposed different strategies to avoid violating the right to a fair trial based on publicity. This is difficult to achieve without infringing on the First Amendment rights. Trial judges could bar statements to the press by those involved in the case. They could delay a trail, move its location or close the courtroom from the public and press. They could also sequester the jury, protecting them from bias. In 1976 the Court ruled out injunctions against press coverage “unless there was a ‘clear and present danger’ of preventing a fair trial.” (Lewis, P. 173-174) The Court failed to find a clear way of avoiding this conflict of interests.

We also see the First Amendment rights conflict with the financing of political campaigns. According to, the 2016 presidential and congressional elections combined cost nearly $6.5 billion. They also found that fewer donors provided a larger share of the money, compared to the 2012 election cycle.

In 2002 Congress banned unlimited contributions to political parties. Critics on both sides of aisle argued that this law violating the First Amendment. In 2007 the Supreme Court leaned away from reform on campaign financing, holding that “restrictions on political spending by independent entities in the period just before the elections violated the First Amendment.”

This conflict also applies to the election of judges. Financing of judge elections became a political issue as political parties realized judicial decisions impacted key social issues. In response, many states prohibited judges from sharing their personal views on controversial issues before the election. In 2002 the Supreme Court held that this violated the First Amendment.

“If judges announce their views in election campaigns, in effect telling voters that they will decide this way or that, they appear to be just another species of politician. The commitment of judges should be to the law…and not to the current popular opinion.” (Lewis, P. 180)

While there are sacrifices that come with protecting the First Amendment, it is important to consider the impact these sacrifices have on other values in our democracy. To avoid corruption of political offices and the influence of private interests in policy, restrictions must be placed on campaign donations from individuals and corporations. To guarantee a fail trial, there would have to be a restriction on the coverage of criminal cases or the exposure of a jury to news coverage.

One thought on “Conflict & Compromise

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  1. Really interesting post! The right to a fair trial and press freedom also interact in a difficult way when judges ban journalists from publishing trial coverage. Judges often do this, not to purposefully limit the freedom of the press, but in an effort to assure the defendant has a fair trial. These court orders are typically overturned because they constitute prior restraint. It’s cases like these and the ones you discuss that remind us of the sacrifices we have to make to live in a free press and free speech society.


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